LACHMINARAYAN DAS Vs. CHAIRMAN, CUTTACK MUNICIPALITY

JUDGEMENT

(1.) This is a second appeal from a decision of the District Judge reversing the decision of the Munsif, who decreed a suit in the following circumstances: The plaintiff is a person who lives in the town of Cuttack and has a house there. Under the provisions of the Bihar and Orissa Municipal Act, the commissioners desired to increase his assessment on the ground that he had extended the building in question by making additions or alterations to it. The Act makes provision by Section 107 for such increase of assessment. Sub-section (1) of Section 107 states the alterations of assessment which may be made in the list. Sub-section (2) provides as follows: The commissioners shall give at least one month's notice to any person interested of any alteration which they propose to make under Clauses (a), (b), (c) or (d) of Sub-section (1) and of the data on which the alteration will be made.

(2.) The commissioners, without giving any such notice, as is provided by this sub- section, in fact proceeded to make an alteration in the plaintiff's assessment and then proceeded to collect the increased tax. The plaintiff complained that he had received no notice and said: that in any case the increased assessment was not justifiable on its merits. It would appear, although there is no direct evidence on the point, that the commissioners proceeded to entertain the plaintiff's objection and ultimately dismissed it. In this suit, however, he says that he is entitled, notwithstanding the circumstances of the rejection of his objection by the commissioners, to claim a declaration firstly that the commissioners, not having issued the required notice, are not entitled to make the alteration which they did in fact make, and he asked for an injunction to restrain them from levying the increased assessment. Since the suit has been brought the assessment has been in fact levied from the plaintiff. The defendant has argued that Sub-section (2) does not have the effect of making the issue of the notice therein mentioned a condition precedent for making the required alteration, and an objection was further taken, that under Section 377 of the Act the suit is not maintainable by reason of the fact that the plaintiff did not before his suit issue the notice provided by that section. As to the last objection, I agree with the learned District Judge and with the learned Munsif that Section 377 has no application to cases of this sort. Section 377, like the English Public Authorities Protection Act and similar legislation in India, is for the purpose of protecting a public authority from suits in respect of acts bona fide purporting to have been performed under the aegis of a lawful act but in which, in spite of the bona fides of the public authority, the law has been overstepped and a tort has been committed. It is not intended to apply to suits for the recovery of sums of money other than damages for tort which are lawfully recoverable either under statute or at Common law.

(3.) This view of the matter was taken by this Court in a recent decision (First Appeals Nos. 83, 84 and 85 of 1932) in which plaintiff sought to recover a statutory amount of compensation which the public authority had refused to pay over to him. I therefore think there is no bar to the suit. On the merits of the suit itself, it seems to me that the meaning of Sub-section (2) of Section 107 is to lay down a condition precedent to the alteration of an assessment. It is conceded that the increased taxation cannot be recovered until the alteration of the list has been made as a condition precedent. Similarly the effect of Sub-section (2) is to make the issue of at least one month's notice of the proposal to make an alteration a condition precedent to the making of the alteration itself. On behalf of the Municipality a further point has been argued that the plaintiff in any case had the merits of his objection entertained by the commissioners and it is suggested that in that case he can hardly claim to have the benefit of the notice which was only intended to give him an opportunity to have his case considered. To my mind this is no answer at all to the plaintiff's claim. We know little or nothing of the actual proceedings that took place before the commissioners, but in any case the plaintiff cannot be prejudiced by the fact that, in default of the commissioners considering his objection on the ground of want of notice, he fell back upon a defence of the merits of his case in the matter of the assessment.